An unrepresented Durban dad has secured a landmark ruling that offers protection to pupils at private schools who haven't paid their school fees.

In terms of the order, private schools can no longer stop pupils from writing their exams if they haven't paid their school fees, without first following "fair procedure" and taking into account the rights of children.

"While it is accepted that independent schools are autonomous, this does not exclude them from the operations of law and the Constitution," Judge Mokgere Masipa said in her ruling in the KwaZulu-Natal High Court in Durban.

"The best practice would be to engage in collection methods that do not impact on the child's best interests….and this must be done in a manner which does not victimise or humiliate the learner," she said.

If the Constitutional Court ratifies her ruling, it will impact all 760 private schools and 160 000 pupils in South Africa.

The matter before the judge was a 2016 application by the father of a then 10-year-old pupil in Grade 5 at John Wesley School in Pinetown, who had been barred from writing mid-year exams because of outstanding school fees.

While the issue became moot after the family cashed in an insurance policy and paid up - and the boy was allowed to write catch-up exams - the father pressed ahead with his court application, arguing that the school's policy was unconstitutional.

The judge then appointed two Durban-based advocates as "friends of the court" to represent the boy while the father, a teacher at another school, represented himself.

'Isolating the child'

In their argument, advocates Laurence Broster, SC, and Camilla du Toit said the effect of the "breathtakingly offensive" policy was "calculated simply to pressure parents" and punish the child who, in this instance, sat by himself in the art centre while his classmates wrote the exams.

They said independent schools should sue parents for fees, rather than victimise and humiliate pupils.

And in this matter, the parents had been in contact with the school, saying they had a short-term financial problem and offered to pay off the R3 800 they owed in instalments.

This offer was rejected.

The advocates argued that: "His parents' trauma at not being able to pay his school fees on time should not under any circumstances be visited on him."

"Only the interests of the school, and not the learner, were taken into account.

"The conduct of the school, on its own version, influenced by the Independent Schools Association of South Africa (Isasa), was appalling and it cannot pass constitutional muster."

They said: "Isolating the child in the art room while he should be writing an exam is not only victimising, but also extremely humiliating. His co-learners would be curious to know why he did not write the exam… confessing that his parents had not paid the fees must be excruciatingly humiliating.

"In this case, the child had done absolutely nothing wrong. He was a well-behaved, diligent learner."

The school fought back

Advocate Warren Shapiro, who represented the school, questioned how a private school, whose sole source of income was school fees, could be expected to educate "on risk" and wait for a litigation process to unfold.

He said the parents had elected to have their child educated at a private school "and no one is obliged to remain there".

But the judge disagreed.

She said the Constitution required that independent schools act in a manner which did not minimise or harm a pupil's right to basic education.

Referring to exclusion protocols, she said while a school had the right to exclude a pupil who contravened the code of conduct and where fees were owed, "this can only be implemented after following fair procedure and taking into account the best interests of the child".

"Due process must be satisfied. These include adequate warning, the provision of arrangements to settle fees or an opportunity to make arrangements to enrol a learner at a new school.

"At one stage, the school saw it as an option to deprive the child of his term report.

"This was a lesser harm than to subject him to victimisation and humiliation by making him sit in the art room.

"It was also unreasonable for the school not to enter into negotiations to settle what was owed. Instead, it took a robust approach.

"While it may be correct that the parents' financial difficulties are not the school's concern, there may be instances where there is a reasonable explanation."

The judge said the fact that the "exclusion" policy had been applied for years, did not make it correct or acceptable.

"It may be that it lacked a brave person like the applicant to challenge it," she said, declaring the policy unconstitutional and invalid.

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